Is Big Boss watching you?

Is your boss monitoring everything you do at work – or, if you are an employer, are you keeping tabs on your employees’ every move?

Forty years ago, if an office worker had produced a newspaper from their bag and started reading it at their desk, they could have been expected it to be noticed and action to have been taken.

For the past couple of decades most office workers have spent their time at work on a computer, and connected to the internet. Culturally, perhaps, the expectation has shifted: most people probably expect to be able to spent small amounts of personal internet time at work.

Not all employers agree, though, and there is ample room for disagreement about where the line should be drawn between short reasonable breaks, and productivity drains.

It’s for this reason that employee monitoring software is becoming increasingly popular. The BBC reported yesterday on one firm which monitors data on employees’ “keystrokes, mouse movements and websites viewed”. Software is even available that will take photographs of employees at regular intervals, and share them publicly with the rest of the team.

Many people feel uncomfortable about these developments. The monitoring seems intrusive and paranoid, and can provoke the same sense of violation and line-crossing commonly voiced in response to surveillance by law enforcement and other government agencies.

But many employers would respond: this is my time, my device, my bandwidth, and my money. When employees are paid to do a job, it is expected that they devote their time to their work.

Ultimately employee data monitoring is not banned. Whilst Article 8 of the ECHR protects the right to a private and family life, there must be a “reasonable expectation of privacy” in any given setting or over a given communication. Earlier this month, in C v Chief Constable of the Police Service of Scotland the Inner House of the Court of Session considered that even private WhatsApp messages sent between police officers outside of their work did not merit protection under this heading, despite the fact that they had been sent from personal devices.

Although these did not come to the attention of the employer through active monitoring, the expectation of privacy would almost certainly be less when working on a work device during work hours, so long as the monitoring complied with the guidance given by the European Court of Human Rights in Barbulescu v Romania: notification of the possibility of monitoring, identification of legitimate reasons, and establishing that the monitoring is not more intrusive than necessary

These requirements dovetail neatly with the employer’s GDPR duties – given the inevitable holding and processing of data involved. The Information Commissioner’s Office issues detailed guidance covering different workplace data issues, Part 3 of which deals with employee monitoring. In brief summary, it outlines that:

  • Employers should conduct impact assessments if they are to carry out any significant monitoring of employees;
  • The objectives of any monitoring have to be set out and justified in terms of benefits to others, e.g. the employer;
  • The likely adverse impact on the monitored employee should be identified, and assessed;
  • If there are alternatives to monitoring, these should be identified and explored;
  • The consequences of monitoring – chiefly, how to store and process the resultant data securely and compliantly – have to be set out clearly.

Openness about monitoring will generally assist an employer hugely, both in complying with the ICO guidance, and in anticipating potential breaches of employment rights in the event of a dispute. An employee dismissed because of poor productivity, for example, has a weaker case on reasonableness in an office where the use of monitoring software is well known and openly declared, than if he or she were taken by surprise with the revelation that the manager had been secretly monitoring the long hours spent scrolling irrelevant websites.

Equally: an employer which is revealed to have been secretly recording keystrokes, or reading otherwise private messages and emails, runs the risk of being charged with undermining the fundamental term of trust and confidence when this is discovered by the unwitting employee, unless the employer can point to an impact assessment where the need for that covert monitoring was considered against alternatives and found to be necessary.

Nothing is now going to change the fact that most workers are going to continue to do their work on the greatest entertainment and time-wasting machine ever invented, and if the shift towards home working becomes permanent, informal and social monitoring (the manager’s purposeful stroll through the open-plan office) will be impractical. Employee monitoring software fulfils a need apparently felt by an increasing number of employers. But employers would do well to remember that the cleverest software available won’t help them meet their employment law obligations: for that, they will have to apply their minds to the rights potentially touched on by the monitoring, and show that they have thought carefully about its impact.

This article was written by David Green, a tenant of 12KBW and co-editor of this blog.

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